You Don’t Have to Assault an Officer to Resist Arrest
Posted By: Jacob Martinez
Category: Resisting Arrest
Have you ever heard the term, “fight or flight?” It describes our basic instincts when we are placed in tense situations. The idea is that all human beings are built to react in one of two ways. Either we will fight back and try to overcome our adversary, or we will try to run away because we realize we’re overmatched.
Unfortunately, this instinct can lead to big problems if it kicks in when a police officer is putting you under arrest. A Colorado man recently learned this the hard way.
Colorado Man Avoids Traffic Stop, Ends Up With Six Criminal Charges
When Tyler Andrew Gonzalez, 22, was flagged down by police for minor traffic violations, he initially chose the “flight” option. He avoided law enforcement until getting into his home.
After police arrived, though, Gonzalez answered the door. Then he immediately shut it and refused to come out. Later, when Gonzalez’s younger sister entered and one of the officers followed her, Gonzalez used the “fight” option.
Allegedly, he began to attack the officer with an airsoft weapon and threatened to kill him. At one point, the officer fell back and hit his head on concrete, and Gonzalez shut his front door again.
A negotiator from the El Paso County Sherriff’s Office eventually calmed Gonzalez down and he surrendered to police.
The damage was already done, though. In theory, every action that Gonzalez took was to avoid getting arrested – to resist. However, things got so out of hand that what could have been a few traffic violations ended up in the following six charges against Gonzalez:
- First-degree assault of a peace officer (felony)
- Menacing (felony)
- Obstructing a peace officer (misdemeanor)
- Resisting arrest (misdemeanor)
- Reckless endangerment (misdemeanor)
- Harassment (misdemeanor)
He is currently being held in El Paso County jail without bond.
What It Takes to Get Charged with Resisting Arrest
Even if Gonzalez’s crimes had ended after he avoided the initial traffic stop, he still could have been charged with resisting arrest.
According to Colorado law, an individual can face “resisting arrest” charges if he or she: “knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:
(a) Using or threatening to use physical force or violence against the peace officer or another; or
(b) Using any other means which creates a substantial risk of causing bodily injury to the peace officer or another.”
This means you do not have to lay your hands on an officer to be charged with resisting arrest. All that you have to do is threaten him or her.
Resisting arrest is a class 2 misdemeanor. You may face up to a year in jail and fines of up to $1,000 if you are convicted.
If you do lay your hands on an officer, you may face additional charges and a mandatory prison sentence. Moreover, if you simply flee the scene, which would hinder officers from performing their duties, you may be charged with “obstructing a peace officer.”
Is It Ever Okay to Resist Arrest?
In nine out of 10 arrests, you should cooperate with police officers. After all, an arrest is not a formal charge. It’s also quite tough to argue that you resisted because the officer was acting unlawfully.
Colorado law even states that when defending a resisting arrest charge, “It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A peace officer acts ‘under color of his official authority’ when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.”
In other words, as long as the prosecution can prove that the officer was acting in good faith, your defense is shot. If you believe the officer is using more force than necessary to arrest you (for example, if you are cooperating but they attempt to assault or shoot), you do have the right to resist arrest, and can use this as a defense strategy in court.
The bottom line is that you need to know your rights when you are interacting with police officers. If you are charged with resisting arrest and believe you were acting within your rights, it is important to talk to a Colorado criminal defense lawyer immediately.
About the Author:
Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.